Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Generation Trade, Inc. v. Ohio Security Insurance Co.

United States District Court, N.D. Texas, Dallas Division

August 6, 2019

GENERATION TRADE, INC., Plaintiff,
v.
OHIO SECURITY INSURANCE COMPANY, Defendant.

          MEMORANDUM OPINION AND ORDER

          ED KINKEADE UNITED STATES DISTRICT JUDGE

         Before the Court is Plaintiff's Rule 59(e) Motion to Alter or Amend Judgment and/or for Reconsideration (the “Motion”) (Doc. No. 76). The Court has carefully considered the Motion, the brief in support of the Motion, the response, the applicable law, and the relevant record. Because Plaintiff Generation Trade, Inc. presents new evidence that creates a genuine dispute of material fact, and because the relevant factors weigh in favor of allowing Plaintiff Generation Trade, Inc. to present this evidence to the Court through a Rule 59(e) motion, the Court GRANTS the Motion and hereby VACATES its prior judgment in this case (Doc. No. 75).

         I. Factual and Procedural History

         The parties are familiar with the facts underlying this insurance dispute, and the Court has previously set forth the relevant facts in its prior order granting summary judgment (Doc. No. 74). The Court therefore only discusses the new evidence presented by Plaintiff Generation Trade, Inc. (“Generation Trade”) and the relevant procedural history of this case that resulted in the Motion that is the subject of this Order.

         Defendant Ohio Security Insurance Company (“OSIC”) moved for summary judgment on Generation Trade's claims on October 26, 2018, approximately a month and a half before the discovery deadline. Although Generation Trade alleges that it intended to rely upon discovery that had not yet occurred at the time OSIC moved for summary judgment, including depositions conducted by defense counsel, Generation Trade did not request an extension to respond to OSIC's summary-judgment motion and instead filed a timely response. Generation Trade did move for leave to file a surreply on December 4, 2018, and in its proposed surreply, Generation Trade included deposition testimony from Andre Simon (“Simon”) (the owner of Generation Trade) and Dan Mizell (“Mizell”) (a non-retained expert). Because of some difficulty in scheduling the deposition of Roberto Pasillas (“Pasillas”) (a roofing contractor who worked on the roof of the property in this case in May 2016), the deposition of Pasillas did not occur until December 10, 2018, and the transcript of this deposition was not available until December 27, 2018. Pasillas's deposition testimony is the relevant evidence for purposes of this Order.

         On May 21, 2019, this Court granted summary judgment in favor of OSIC on Generation Trade's breach-of-contract claim because Generation Trade failed to present evidence that a genuine dispute of material fact remained on the issue of concurrent causation. In its order, the Court noted that Simon's affidavit did not create a genuine issue of material fact on the concurrent-causation issue. The Court acknowledged that lay-witness testimony about the condition of property prior to an alleged covered loss can create a genuine dispute of material fact on an issue of concurrent causation. Simon, however, did not assert in his affidavit that he had observed the roof of Generation Trade's property at any time prior to the alleged July 4/5, 2016 hailstorm; Simon instead only stated that “[he] did not personally observe hail damage to the metal roofing system at the property at any time prior to June 2016.” GT APP 000918. Generation Trade did not provide the Court with any indication that Simon in fact examined the roof in anyway prior to June 2016.

         The Court's observation about the phrasing of this statement in Simon's affidavit is important to a discussion of the various testimony from Pasillas. Generation Trade included an affidavit from Pasillas in its appendix in support of its response to the motion for summary judgment. GT APP 000917. In his affidavit, Pasillas explains that he personally was responsible for removing a portion of the older, 24-gauge metal panels from the roof and replacing them with the newer, 26-gauge metal panels. Pasillas states that these new, 26-gauge panels were not damaged and did not have any hail dents at the time he installed them in May 2016. In the fifth paragraph of his affidavit, Pasillas states, “I did not observe any hail damage to the metal panels prior to the July 4/5, 2016 hailstorm.” Although this testimony could suggest that Pasillas, who performed this work on the roof in May 2016, would have personally observed the state of the older, 24-gauge metal roof prior to Generation Trade's alleged date of loss, there were three issues with the Court reaching such conclusion at the time of the summary-judgment briefing. First, Generation Trade did not cite to the Pasillas affidavit in its response to the motion for summary judgment as evidence that the roof was not damaged by hail prior to the alleged July 4/5, 2016 hailstorm. Generation Trade only cited this affidavit in its response to the motion for summary judgment as support “that there was no hail damage to the newer panels at the time of installation in May 2016.” Second, Pasillas's statement about not observing any hail damage prior to the July 4/5, 2016 hailstorm is, on its face, similar to Simon's statement about Simon's observations: It does not inform the Court whether, and to what extent, Pasillas inspected the older, 24-gauge metal roof. Third, it is unclear from the text of this six-paragraph affidavit what “metal panels” Pasillas was referencing when he stated he did not observe any hail damage. The beginning paragraphs of the affidavit discuss the new, 26-gauge metal panels that Pasillas installed, so this affidavit suggested, especially in light of how Generation Trade cited the affidavit in its response to summary judgment, that Pasillas's observation about the lack of hail damage to the “metal panels” meant the metal panels he installed (i.e., the 26-gauge panels) rather than all the metal panels.

         In the instant Motion, Generation Trade produces, for the first time, Pasillas's deposition testimony. Pasillas's deposition testimony provides a more definite picture of what Pasillas observed while he was installing the new, 26-gauge metal panels to the roof. For example, when discussing the portion of the older, 24-gauge metal panels that Pasillas replaced, Pasillas testified that he never saw any hail damage to the older, 24-gauge metal panels he replaced. GT APP 001678-79. When questioned further, Pasillas provided more context. Pasillas confirmed that his statement in his affidavit- that the new, 26-gauge panels were undamaged and had no hail dents when he installed them-was accurate. GT APP 001680. When asked in the next question whether he ever saw any hail damage to the older panels, Pasillas responded “no.” Id. Unlike his affidavit, which appeared to focus on the condition of the newly installed panels (as evidenced by the only citation to the affidavit in Generation Trade's response to the motion for summary judgment), the deposition provides evidence that Pasillas observed the condition of the older roof in May 2016 and did not see any hail damage to those older metal panels. As discussed below in this Order, this testimony is significant for purposes of the Court's concurrent-causation analysis.

         II. Applicable Law

         “A Rule 59(e) motion ‘calls into question the correctness of a judgment.'” Templet v. HydroChem Inc., 367 F.3d 473, 478 (5th Cir. 2004) (quoting In re Transtexas Gas Corp., 303 F.3d 571, 581 (5th Cir. 2002)). A Rule 59(e) “motion is not the proper vehicle for rehashing evidence, legal theories, or arguments that could have been offered or raised before the entry of judgment.” Id. at 479. The Fifth Circuit has instead recognized three narrow grounds for a Rule 59(e) motion: (1) “a manifest error of law or fact”; (2) “newly discovered evidence”; and (3) “an intervening change in the controlling law.” Schiller v. Physicians Res. Grp. Inc., 342 F.3d 563, 567-68 (5th Cir. 2003) (quoting Rosenzweig v. Azurix Corp., 332 F.3d 854, 863-64 (5th Cir. 2003)). “Rule 59(e) has been interpreted as covering motions to vacate judgments, not just motions to modify or amend.” Edward H. Bohlin Co., Inc. v. Banning Co., Inc., 6 F.3d 350, 355 (5th Cir. 1993).

         A district court reviewing a Rule 59(e) motion must balance “two important judicial imperatives relating to such a motion: 1) the need to bring litigation to an end; and 2) the need to render just decisions on the basis of all the facts.” Templet, 367 F.3d at 479. The standard of review that the Fifth Circuit applies when reviewing appeals of decisions on Rule 59(e) motions provides insight into the “considerable, ” but “not limitless, ” discretion the district court has in deciding Rule 59(e) motions. Id. When the basis for a Rule 59(e) motion is the presentation of new evidence, “if the district court refuses to consider the [new evidence], the reviewing court applies the abuse of discretion standard.” Id. at 477. The district court's decision about whether to consider the new evidence or not “need only be reasonable.” Id. If the district court chooses to consider the new evidence but “still grants summary judgment, the appropriate appellate standard of review is de novo.” Id. “Reconsideration of a judgment after its entry is an extraordinary remedy that should be used sparingly, ” but there are two steps in the district court's analysis that make this remedy “extraordinary.” Id. at 479. The first step by the district court is simply whether it should even consider the new evidence, and, in this decision, the district court has “considerable discretion” and must “only be reasonable.” Id. at 477, 479. At this first step, “[t]he task for the district court is to strike the proper balance between [two] competing interests”: “1) the need to bring litigation to an end; and 2) the need to render just decisions on the basis of all the facts.” Id. at 479. It is only at the second step that the remedy provided by a Rule 59(e) motion potentially becomes “extraordinary” because, upon reconsideration, the finality of the district court's original judgment may be disturbed. See Id. Despite the fact that Rule 59(e) is an extraordinary remedy, district courts must still consider the propriety of the movant's Rule 59(e) motion to determine if the movant presents one of the “sparing” situations that merit reconsideration of a judgment. See, e.g., In re La. Crawfish Producers, 852 F.3d 456, 465-66 (5th Cir. 2017) (holding that “[t]here [were] several factors the district court should have considered when determining whether to grant” a Rule 59(e) motion predicated on the introduction of new evidence); Luig v. N. Bay Enters., Inc., 817 F.3d 901, 906 (5th Cir. 2016) (refusing to affirm the district court's denial of a Rule 59(e) motion on the basis that Rule 59(e) is an “extraordinary remedy that should be used sparingly” when there were “several factors that the district court should have considered when determining whether to grant [the movant's] 59(e) motion”).

         III. Analysis

         Generation Trade moves for reconsideration of the Court's judgment in this case on two grounds: (1) manifest error of law and (2) newly discovered evidence. The Court addresses Generation Trade's first ground for reconsideration (manifest error of law) before turning to the focal point of this Order: Generation Trade's new evidence.

         A. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.